should the baker be penalized if he refused to write “Allah bless this marriage!” on a straight couple’s cake?
Should the baker be penalized if he refused to write “God bless this union!” on an interracial marriage cake?
should the baker be penalized if he refused to talk to any women who walked into his business? Or posted a sign at the door “no women allowed in”?
See the pattern? Protected classes under anti-discrimination law. At what point can a person operate a public business and say “I refuse to cater to XXXX protected class despite discrimination laws because God told me so”?
What if they were off-the-shelf cakes and the only addition was the writing (like from the local grocery store)?
The only allowance I see possible is that the decorator could delegate the job to some other employee (at the employer’s discretion) to accommodate as best he can, as long as the end result is the customer gets served.
The Supreme Court pointedly refused to say the cake maker was in the right. they instead picked on the comments of the Colorado rights tribunal and said the religious point of view could not be completely ignored as a factor.
But they are not. How about if we go the other way, and he hangs a sign saying “I am an artist who will do commissioned works of art if and only if I and the customer come to a meeting of minds”? But then gay couples find that he may meet with them and discuss designs, but he never ends up taking them as clients. However, there are also a few examples of straight couples he has declined to make cakes for as well. What then?
Which goes back to what I said… “that’s why we have judges”. In this grey world the black-and-white divide may often be in fuzzy location.
As for you most recent “what if…” it reminds of the cases where many older people who are laid off together say “do I have a case for age discrimination?” Unless HR has been really stupid, they fired a few youngsters along with the high paid older workers just to be sure the case is not obvious. Or when HR hires a few (token) black people to avoid race discrimination charges. But then, this would not be the artists standing on principle, this would be the artist deliberately hiding his principles - implicitly saying “I understand society would consider my actions wrong, therefore I’m going to camouflage them”.
Again - the court does not force an artist to create against his wishes and inclination… it just assesses a tidy sum as a fine for being discriminatory. Then the artist must decide whether his principles are thicker than his wallet or a different line of business is called for.
I still see those, and not in the South. But I still think there’s a huge difference between refusing to serve someone a burger or beer, vs. refusing to make a custom work of art for them. Another example that comes to mind is a stylist or dressmaker, as shown in the recent PT Anderson movie. There is a push in the fashion world to be less “size-ist”, led by Tim Gunn. But I would be shocked if the state ever forced designers to make red carpet looks for obese women, even if they aren’t coy and simply say “plus sizes are just not my brand”.
And this is where we come back to over and over. At what point does an activity change from being “serving a commodity” to being “creating a work of art”? That’s why we have judges. A sculpture is art, hence first amendment protected. A burger, except in extreme circumstance, not. A cake? Ask the judge. This time, the judges dodged the question.
And again, you’re missing the point about protected classes. “Fat” so far is not a protected class, but I imagine it will get there shortly as a form of disability. Meanwhile national origin, race, creed, age (over 18 under 65), and sex are generally protected. In some jurisdictions sexual orientation is protected. You cannot discriminate based on protected classes in commerce or government law.
If you have a theological issue with the idea of baking a cake for a wedding that you disapprove of, who better to talk it out than with your pastor, minister, priest or other titled spiritual advisor.
Tell him that you have an order for a cake for a same sex wedding, and that you are conflicted on what to do.
The law states that you are supposed to make the cake, so it is either a legal fight or a fine or some sort of secular cost to following with your sincerely held beliefs.
He will probably nod in empathy for your situation, but not in agreement.
Then there is the social cost. People don’t like bigots, and not just those effected by the bigots, so getting in the news and social media may cost you business.
He will further stroke his chin and look very serious, but still not agreeing with the solution to your plight.
Then you tell him that you will donate the proceeds of the cake to his church.
That’s what the baker offered… that the couple could buy cookies or other pre-made or generic baked goods. He just didn’t want to create an artistic, custom-made cake for them.
This is a very complex case, and the SC decision is very narrow, and quite nuanced.
You can make what you want. But… you can’t refuse to sell the women’s clothes to men. You can make for example cosmetics in only one range of colours, but you still cannot refuse to sell them to someone who is off-colour or the wrong gender.
If the cake guy had said (legitimately) “my design of cakes are not appropriate for the celebration you plan” he might have been more in the right - but they didn’t even get to cake design, and most wedding cakes are preference-agnostic if you leave off the words or cake toppers (which many do) so doesn’t apply.
he refused to bake for them not because his designs would not fit but because he would not serve that product to gays.
I’m talking about someone who makes individual (and very expensive) creations one at a time, designed specifically for the individual wearing them.
I would (if I could make dresses at all, which I can’t even though I’m addicted to the show “Project Runway” and its spinoffs), but my read of the Constitution is that it wouldn’t pass muster to insist that a bespoke designer make a dress (or anything else) for a man if s/he didn’t want to. “I design for a certain silhouette” (or maybe even beyond that, only for beautiful women known for their style and class).
Definitionally, it’s a kind of discrimination, sure. Legally? I don’t think so.
We’ve been talking about a continuum between supplying commodities and being commissioned to make art. I assume, but will ask to make sure, that no one reading this would argue that it would qualify as legally prohibited discrimination if a modern-day da Vinci were to declare that he was available for hire to paint portraits of women (if they were beautiful enough, with the right pedigree, etc.) but that children, men, and the elderly need not apply? On the other end of the spectrum, I assume no one would deny that it’s illegal discrimination to refuse to allow women to stay in your hotel. As people have been pointing out, then, a lot of the wedding cake issue comes down to where on that spectrum of art vs. public accommodation bespoke cake baking lies. I think it is more on the “art” side, but I acknowledge it’s in a somewhat grey area.
But so to get back to your specific claim here of discrimination as regarding the dressmaker, I think that’s quite clearly further down the spectrum on the “art” side. I’m surprised you’d argue otherwise.
I’m actually kind of happy that you brought up the clothing designers. Because I think that’s an almost perfect analogy for the cake bakers.
In clothing, you basically have three choices each of which has an equivalent in the baking world.
There’s haute couture (women’s) and bespoke (men’s) clothing , which involve designing/making a pattern from scratch for a particular person. This would be the equivalent of going to the Cake Boss and ordering a one-of-a-kind cake which was not designed until I had a consultation with the baker.
2)There’s made-to-measure clothing, which involves adjusting existing patterns to fit the customer. The suit or dress is not made until the customer orders it, and there is some choice of color or fabric involved, but the deign and pattern existed before the customer ever thought of buying suit or dress. This is the equivalent of ordering Wedding Cake #252 and choosing the filling flavor and the color of the flowers. (It’s also the most common type of wedding cake.)
3)The last type is ready-to-wear clothing, which is also known as off the rack. This was both designed and produced before the customer ever walked into the store. The customers choices are limited to what has already been made and is already hanging on the rack. This is the equivalent of an off-the-shelf cake, where I can just walk into the bakery and choose from what’s in the display case.
I don’t think anybody would consider #3 an example of a commission to make art- they’re off the shelf/rack and were designed created before there even was a customer/occasion to think of. When the baker makes that strawberry shortcake, s/he has no idea if it will be served at a birthday party, a tiny wedding or just for dessert tonight.
Plenty of people would consider #1 to be a form of commissioned art- even if I bring in a sketch of exactly how I want the cake to look, the baker will have to figure out how to translate that sketch into a cake.
It’s #2 that’s the problem - which is exacerbated by bakers referring to both #1 and #2 as “custom” or “customized” cakes. #2 is clearly not an off-the shelf cake, but it’s also clearly not a design that didn’t exist prior to the cake being ordered. It’s hard to see how a wedding cake made from a pre-existing design with some customer choices is more artistic than a Baskin-Robbins cake made from a pre-existing design with some customer choices. In addition to bakers using “custom” to refer to #2 and #3, I believe that the parties in both sides in these court cases want to conflate #1 and #2 ( since they never define exactly what is meant by “custom”). Because neither side wants a decision that says the baker is not required to provide a #1 cake, but must provide a #2 cake ( which might well be the final answer after 5 or 10 or 15 years of these cases)
Well of course. If you want a portrait as a man, call Michelangelo. (And if you want a portrait of your child, call Donatello).
But I think Doreen has provided the definitive answer. Much as there’s a set of guidelines for “fair use” in copyright, how much s too much copying is determined by considering a set of criteria based on SC guidelines in test cases. There will probably be a similar set of criteria, including how much value is placed on the “artist” input vs. materials, time required, artist reputation, number of competing requests, etc. to determine whether the person is truly an “artist” and therefore protected.
Haute couture for example, pick and choose many of their “billboard” customers for red carpets and other galas - a definite example of artist-ness. But someone had to do Ru Paul’s dresses…
All this artist discussion ignores the other aspect - religion.
As I said in an earlier post… Again - the court does not force an artist to create against his wishes and inclination… it just assesses a tidy sum as a fine for being discriminatory. Then the artist must decide whether his principles are thicker than his wallet or a different line of business is called for.
Eventually the “artist” will decide that paying to create instead of earning is probably not his calling.